If you own a home in California and have been putting off estate planning, you are not alone. One question keeps coming up: Do I need a will, a trust, or both? The answer matters more than you might think, especially in California where probate can cost your family tens of thousands of dollars and take over a year to complete.
Here is the short answer: For most California homeowners, a revocable living trust is the smarter choice. A will alone sends your estate through probate court. A properly funded trust does not. That single difference can save your family significant time, money, and stress during an already difficult period.
This guide breaks down the real differences between wills and trusts under California law, explains how probate fees are calculated, and helps you decide which option makes sense for your family. Whether you live in Carlsbad, San Diego County, or anywhere in California, understanding these distinctions is the first step toward protecting the people you love.
Key Takeaways: Will vs. Trust
- A will must go through California probate court; a properly funded living trust does not.
- California probate typically takes 12 to 18 months and costs 4% to 8% of the estate’s gross value in statutory fees alone.
- If your California estate exceeds $208,850 (effective April 1, 2025), your family will face full probate with only a will.
- A living trust avoids probate, maintains privacy, and provides protection if you become incapacitated.
- Most California families benefit from having both a living trust and a pour-over will working together.
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What Is a Will Under California Law?
A will is a legal document that states who should receive your property after you die. In California, a valid will must be in writing, signed by the person making it (called the testator), and witnessed by at least two people who are present at the same time. California Probate Code Section 6110 sets out these requirements.
A will only takes effect after death. It has no legal power while you are alive and cannot help your family if you become incapacitated due to illness or injury.
What a Will Can Do
- Name guardians for your minor children (this can only be done in a will, not a trust)
- Specify who receives your property and in what amounts
- Name an executor to manage your estate through probate
- Include conditions on inheritances, such as requiring a beneficiary to reach a certain age
The Major Downside: California Probate
The biggest limitation of a will in California is that it must go through probate court after you die. Probate is a court-supervised process where a judge validates your will, creditors are notified and paid, and assets are distributed to beneficiaries. This process typically takes 12 to 18 months, sometimes longer for complex estates.
During probate, your assets may be frozen. Your family cannot sell the house, access bank accounts, or distribute property until the court grants permission. Additionally, probate is a public proceeding. Anyone can look up your will and see exactly what you owned and who inherited it.
What Is a Living Trust Under California Law?
A living trust (also called a revocable living trust ) is a legal arrangement where you transfer ownership of your assets to the trust during your lifetime. You name yourself as the initial trustee, which means you keep full control over everything. You can buy, sell, and manage trust assets exactly as you did before.
The person who creates the trust is called the settlor, trustor, or grantor (these terms mean the same thing). The trust document names successor trustees who step in if you become incapacitated or pass away. It also names beneficiaries who will ultimately receive the trust assets.
How a Living Trust Avoids Probate
Assets owned by your trust are not subject to probate because they are not owned in your individual name at death. Instead, they are owned by the trust. When you pass away, your successor trustee simply follows the instructions in the trust document to distribute assets to beneficiaries. No court involvement is required.
This is the primary reason California estate planning attorneys recommend living trusts for most homeowners. The trust provides a private, efficient way to transfer assets without the delays and expenses of probate court.
5 Key Benefits of a California Living Trust
- Probate avoidance: Assets transfer directly to beneficiaries without court involvement
- Privacy: Trust documents are not filed with the court and remain private
- Incapacity protection: Your successor trustee can manage assets if you become unable to do so
- Flexibility: You can change or revoke the trust anytime during your lifetime
- Control over distributions: You can specify when and how beneficiaries receive their inheritance
How Much Does California Probate Cost?
California has statutory probate fees set by Probate Code Section 10810. Both the attorney and the personal representative (executor) are entitled to the same fee, calculated as a percentage of the gross estate value. Here is how the fees break down:
Estate Value | Attorney Fee | Total Statutory Fees |
$500,000 | $13,000 | $26,000 |
$750,000 | $18,000 | $36,000 |
$1,000,000 | $23,000 | $46,000 |
$1,500,000 | $28,000 | $56,000 |
$2,000,000 | $33,000 | $66,000 |
Important: These fees are calculated on the gross value of the estate, not the net equity. If you own a home worth $1,200,000 with a $400,000 mortgage, probate fees are calculated on the full $1,200,000. The mortgage is not subtracted.
These statutory fees do not include court filing fees ($435 or more), publication costs ($200 to $500), probate referee fees, or extraordinary fees for complex matters such as selling real estate or resolving disputes.
Will vs. Trust: Side-by-Side Comparison
The following table summarizes the key differences between a will and a living trust under California law:
Factor | Will | Living Trust |
Probate Required? | Yes, must go through probate court | No, if properly funded |
Timeline | 12 to 18+ months | Weeks to a few months |
Privacy | Public record after probate | Remains private |
Incapacity Protection | None (only effective at death) | Yes, successor trustee can manage assets |
When It Takes Effect | Only after death | Immediately upon creation and funding |
Asset Transfer Required? | No, assets remain in your name | Yes, must fund the trust |
Cost to Create | Generally less expensive initially | Higher upfront cost, but typically saves money overall |
Names Guardians? | Yes | No (requires a separate will) |
What Is California’s Probate Threshold?
California law allows estates under a certain value to pass without formal probate using simplified procedures. As of April 1, 2025, the threshold is $208,850. This amount adjusts periodically for inflation.
If the total value of the deceased person’s California assets subject to probate exceeds $208,850, full probate is required. For most San Diego County homeowners, this threshold is easily exceeded by the home alone.
For estates under the threshold, heirs may be able to use a small estate affidavit (for personal property) or a simplified petition (for real property) to transfer assets without full probate. However, these simplified procedures still have requirements and waiting periods.
Why Funding Your Trust Matters
Creating a trust document is only the first step. The trust does not avoid probate unless you actually transfer your assets into it. This process is called funding the trust.
In our experience helping families throughout San Diego County, one of the most common estate planning mistakes is failing to properly fund the trust. We have seen families come to us after a loved one passed away with a beautiful trust document that was never funded. The result? The home still had to go through probate because it was titled in the deceased person’s individual name, not in the name of the trust.
How to Fund a Living Trust
Funding involves re-titling assets from your individual name to the name of your trust. Here is how it works for common assets:
- Real estate: Record a new deed transferring ownership to yourself as trustee of your trust
- Bank accounts: Change the account title to the trust name or open new accounts in the trust’s name
- Investment accounts: Re-register the accounts in the trust’s name
- Life insurance and retirement accounts: These typically use beneficiary designations rather than trust ownership (consult an attorney about your specific situation)
Do You Need Both a Will and a Trust?
For most California families, the answer is yes. Even if you have a comprehensive living trust, you still need a will. Here is why:
Guardian nominations: Under California law, you can only name guardians for minor children in a will, not in a trust. If you have children under 18, you need a will to express your wishes about who should raise them.
Pour-over will: A pour-over will acts as a safety net for any assets that were not transferred to your trust during your lifetime. It directs that those assets should pour over into your trust to be distributed according to your trust’s terms.
While assets that pass through a pour-over will still go through probate, having this backup ensures nothing falls through the cracks and that all your assets ultimately go where you intended.
Revocable vs. Irrevocable Trusts: What Is the Difference?
When people talk about living trusts for estate planning, they usually mean revocable living trusts. However, irrevocable trusts serve different purposes and offer different benefits.
Revocable Living Trust
- You can change, amend, or revoke it at any time during your lifetime
- You maintain complete control over trust assets
- Assets are still considered yours for tax purposes
- Does not provide asset protection from creditors during your lifetime
- Becomes irrevocable upon your death
Irrevocable Trust
- Generally cannot be changed or revoked once created
- Assets are removed from your estate for tax and creditor purposes
- May provide asset protection benefits
- Used for specific purposes like life insurance planning (ILIT) or Medi-Cal planning
Most families start with a revocable living trust for basic estate planning. Irrevocable trusts are typically used for more advanced planning strategies and require careful consideration of the tradeoffs involved.
Special Situations: When a Trust Provides Extra Protection
While a living trust benefits most California homeowners, certain situations make a trust especially valuable:
Blended Families
If you have children from a previous relationship, a trust can ensure your current spouse is provided for while protecting your children’s ultimate inheritance. This is much harder to accomplish with a will alone.
Beneficiaries Who Need Protection
A trust allows you to distribute inheritances over time rather than all at once. This can protect young adults from receiving too much too soon, or protect a beneficiary who has difficulty managing money, struggles with addiction, or receives government benefits that could be affected by a direct inheritance.
Property in Multiple States
If you own real estate in California and another state, your family could face probate in both states without a trust. A properly funded trust avoids this ancillary probate problem.
Privacy Concerns
Probate is public. If you prefer that your assets, beneficiaries, and family arrangements remain private, a trust keeps this information out of the public record.
California Will vs Trust Chart
FAQ's: Will vs Trust
No. A will does not avoid probate. In California, any estate with assets exceeding $208,850 (effective April 1, 2025) that pass through a will must go through probate court. This process typically takes 12 to 18 months and costs thousands of dollars in statutory fees. A living trust, when properly funded, allows assets to pass directly to beneficiaries without court involvement.
A comprehensive estate plan including a living trust, pour-over will, powers of attorney, and advance healthcare directive typically costs between $2,500 and $5,000 when prepared by an experienced California estate planning attorney. While this is more than a simple will, it is often a fraction of what your family would pay in probate fees. For many families, the upfront investment saves significant money in the long run.
While DIY trust kits and online services exist, they come with significant risks. California estate planning law has specific requirements, and mistakes can be costly. We have seen families bring us trusts created online that were missing critical provisions or were not properly funded. At that point, the family ends up paying both for the original document and for an attorney to fix the problems, often during probate when fees are highest.
If you die without an estate plan, California’s intestate succession laws determine who inherits your property. Your assets will go to your closest relatives according to a formula set by law, which may not match your wishes. Your estate will also go through probate, with the court appointing an administrator to handle the process. For married couples with separate property or anyone with specific wishes about their assets, this can lead to unintended outcomes.
A standard revocable living trust does not provide asset protection during your lifetime. Because you retain control over the trust assets, creditors can still reach them. However, after you pass away, assets distributed to beneficiaries through the trust generally become the beneficiaries’ separate property. For asset protection during your lifetime, other planning tools such as irrevocable trusts or business entities may be appropriate.
Yes. You should review your estate plan every three to five years and after major life events such as marriage, divorce, birth of children or grandchildren, death of a beneficiary or trustee, significant changes in assets, or moves to a new state. California law changes periodically, and your trust should reflect both current law and your current wishes.
A pour-over will is a backup document that works with your living trust. It directs that any assets not already in your trust at death should pour over into the trust to be distributed according to your trust’s terms. While these assets still pass through probate, the pour-over will ensures they ultimately reach the intended beneficiaries. For families with minor children, the pour-over will also names guardians.
Which Option Is Right for Your Family?
For most California homeowners, especially those in San Diego County where home values make it easy to exceed the probate threshold, a living trust is the foundation of a solid estate plan. The math tends to favor trusts: the cost of creating a comprehensive trust-based estate plan is typically far less than what your family would pay in probate fees.
A will alone may be sufficient if you have minimal assets, no real estate in California, and assets that pass automatically through beneficiary designations or joint ownership. However, even in these situations, a will does not provide incapacity protection or privacy.
The best approach depends on your specific situation: your assets, family structure, goals, and concerns. An experienced California estate planning attorney can help you understand your options and create a plan that protects your family while fitting your budget.
Ready to Protect Your Family?
If you live in Carlsbad, San Diego County, or anywhere in California and have questions about whether a will or trust is right for your situation, Opelon LLP is here to help. Our estate planning attorneys focus exclusively on trusts, estates, and probate under California law.
Contact Opelon LLP at (760) 278-1116 or visit opelon.com to schedule a consultation and learn how a properly structured estate plan can give you and your family peace of mind.
